Publications

Of Affirmative Action, Judicial Activism, and Constitutionalism

Res Publica

April 1995

by Craig Haller

The United States of America is the sole remaining superpower on the planet. It is, and has been for some time, the greatest country on the globe. Since its conception it has seemingly possessed a destiny to become the true bastion of liberty and equality in a world that has recurrently denied such tenets that "all men are created equal" and that each of them possesses a sufficient amount of human dignity to decide exactly what is in his best interest. It is not a preordained destiny, however, and quite frankly, the undeniable success of the United States owes nothing to fate or luck. The glorious history of America has not been bestowed on her by God. Rather, we owe our triumphant past to honorable, industrious men and women who have not yielded to the temptations of compromise in their attempt to forge a correct interpretation of the proper humane society out of the wilderness of human passion and human infallibility. The classic manifestation of such an effort, of course, is the Constitution. It is precisely this document, as well as the principles sanctified by it, that have allowed America to become great.

American Constitutionalism is not well, however. Its ailments, unfortunately, are numerous. One of its greatest afflictions is affirmative action. The disease caused by the quota system that has developed since the Civil Rights Act of 1964 has made America into a country that is not merely afflicted with discrimination, but, rather, has made it into a country that rests firmly upon it. In fact, since its inception, the intent of the Civil Rights Act has been undergoing a metamorphosis. Through an offensive collaboration of the Equal Opportunity Commission (the group given much of the responsibility for implementation) and the Supreme Court, the Civil Rights Act of 1964 has created a society that has legalized behavior that the legislation was expressly designed to eradicate.

Undeniably, the greatest part of the guilt lies on the Supreme Court. In direct opposition to their assigned duty, the Supreme Court has refused to merely interpret the Constitution and the intent of the laws that fall before it. Our current quota system is a prime example of this judicial irresponsibility. More specifically, even though the chief advocate of the Civil Rights Act, Senator Hubert Humphrey, remarked that if there existed anywhere within the Act anything resembling quotas he would "start eating the pages one after another, because it is not in there," the Supreme Court, nevertheless, has continually allowed racial and gender preferences to dominate employment practices, thereby eliminating merit-based requirements. Further provisions defining discrimination as "intentional" act and protecting merit-based employment tests have also been deliberately overlooked by subsequent activist courts in order to aid an agenda designed to improve the conditions of selected groups at the undeniable expense of white males. Furthermore, the quota system is not only an attack on white males but on private business, in general. Sadly, this government intrusion has made the private sector a sort of quasi-public works system intended to employ workers for employments sake with no regard for productivity.

The behavior of those who have been instrumental in furthering affirmative action is summed up quite effectively by a quote of Justice Thurgood Marshall found in the autobiography of the liberal judge William O. Douglas&151;"You guys (white males) have been practicing discrimination for years. Now it is our turn." Clearly, such a statement reveals a lack of respect for the expressed duties of a Supreme Court judge. Sadly, however, it is quite representative of the entire era of affirmative action where punitive damages have become juxtaposed with constitutionally-protected rights.

So here, once and for all, I, a member of this countrys majority group, apologize on behalf of myself and all white males for possessing the same skin color as well as the same gender as many of the worst discriminators in American history. With that said, however, the citizens of this great nation must realize that there is no room under the Constitution for legalization designed to punish those who physically resemble past perpetrators of injustice. We must also realize that the term "discrimination" does not only refer to an offense against a minority group. In fact, it applies as much to a white male from Minnesota as it does to a black woman from California. Such a correct interpretation of the term is sorely lacking throughout this country. Without it, the color-blind country that Justice John Marshall Harlan discerned nearly one hundred years ago will continue to exist as one of that views the rights of its citizens through the prism of racial and gender preferences.

Craig Haller is a junior from Kersey, Pennsylvania, majoring in History and Political Science.